5214.04 HIV Positive Inmates Who Pose Danger to Other, Procedures for Handling of

us-doj-guidance-DOJ-13146665214.04 HIV Positive Inmates Who Pose Danger to Other, Procedures for Handling ofGuidance

Program
Statement
U.S. Department of Justice
Federal Bureau of Prisons
OPI: OGC
NUMBER: 5214.04
DATE: 2/4/98
SUBJECT: HIV Positive Inmates
Who Pose Danger to
Other, Procedures for
Handling of
1. [PURPOSE AND SCOPE §541.60. In an effort to maintain a safe
and orderly environment within its institutions, the Bureau of
Prisons may place in controlled housing status an inmate who
tests HIV positive when there is reliable evidence that the
inmate may engage in conduct posing a health risk to another
person.]
This Program Statement establishes procedures to follow when an
inmate who has tested positive for the Human Immunodeficiency
Virus (HIV) indicates by actions or words that he or she is
likely to engage in, or continue to engage in, conduct that poses
a significant threat to transmit the virus to another person.
Specifically, individuals who pose such a concern are to be
considered for placement in a controlled housing status.
If selected for this placement, the inmate is afforded, to the
extent practicable, the privileges afforded to the general
population, except that the opportunity to socialize with others
is limited and closely supervised. The inmate's status is
reviewed regularly, and he or she may be returned to a general
population when the perceived danger is alleviated.
The HIV is transmitted primarily through two very specific
routes:
P blood-to-blood contact (e.g., shared needles) and
P sexual fluids to blood contact (sexual practices involving
passage of fluids).
[Bold Type - Rules]
Regular Type - Implementing Information
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To help control the risk and spread of HIV, the Bureau provides
HIV education programs for inmates, as well as HIV counseling to
any inmate who tests HIV-positive.
When, despite such education and counseling, a person engages in
or shows a disposition to engage in high-risk behavior, it is
necessary to act immediately to remove that person from the
general inmate population.
2. PROGRAM OBJECTIVES. The expected results of this program
are:
a. Risks of the spread of HIV will be reduced.
b. Privileges for HIV-positive inmates placed in controlled
housing will be maintained, to the extent practicable, consistent
with the privileges afforded to the general population, except
that the opportunity to socialize with others will be limited and
closely supervised.
c. Each HIV-positive inmate in controlled housing status will
be reviewed regularly and returned to a general population when
the perceived danger to others is alleviated.
3. DIRECTIVES AFFECTED
a. Directive Rescinded
PS 5214.03 Procedures for Handling of HIV Positive
Inmates Who Pose Danger to Others (10/9/87)
b. Directives Referenced
PS 1315.06 Legal Activities, Inmate (3/3/97)
PS 1330.13 Administrative Remedy Program (12/22/95)
PS 5264.06 Telephone Regulations for Inmates (12/22/95)
PS 5265.10 Correspondence (12/18/97)
PS 5267.05 Visiting Regulations (7/21/93)
PS 5270.07 Inmate Discipline and Special Housing Units
(12/29/87)
PS 6190.02 Infectious Disease Management (10/3/95)
c. Rules cited in this Program Statement are contained in 28
CFR 541.60 through 541.68.
4. STANDARDS REFERENCED
a. American Correctional Association 3rd Edition Standards for
Adult Correctional Institutions: 3-4224, 3-4230, 3-4231, 3-4233,
3-4235, and 3-4236
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b. American Correctional Association 3rd Edition Standards for
Adult Local Detention Facilities: 3-ALDF-3C-11, 3-ALDF-3C-16,
3-ALDF-3C-17, 3-ALDF-3C-19, 3-ALDF-3C-21, and 3-ALDF-3C-22
c. American Correctional Association Standards for Adult Boot
Camps: 1-ABC-3C-06, 1-ABC-3C-09, 1-ABC-3C-11, 1-ABC-3C-13, and
1-ABC-3C-14
d. American Correctional Association 2nd Edition Standards for
the Administration of Correctional Agencies: 2-CO-4E-01
5. [STANDARD FOR PLACEMENT IN CONTROLLED HOUSING STATUS §541.61.
An inmate may be placed in a controlled housing status when there
is reliable evidence causing staff to believe that the inmate
engages in conduct posing a health risk to others. This evidence
may be the inmate's behavior, or statements of the inmate, or
other reliable evidence.]
6. [REFERRAL FOR PLACEMENT §541.62
a. The Warden shall consider an inmate for controlled housing
status when the inmate has been confirmed as testing HIV positive
and when there is reliable evidence indicating that the inmate
may engage in conduct posing a health risk to others. This
evidence may come from the statements of the individual, repeated
misconduct (including disciplinary actions), or other behavior
suggesting that the inmate may engage in predatory or promiscuous
sexual behavior, assaultive behavior where body fluids may be
transmitted to another, or the sharing of needles.
b. The Warden shall submit a recommendation for referral of an
inmate for placement in a controlled housing status to the
Regional Director in the region where the inmate is located.]
The written request is to include the basis for the referral
and be accompanied by:
# a current progress report,
# a comprehensive medical report (including a
confirmation that the inmate is HIV-positive), and
# a copy of an up-to-date psychological or psychiatric
report.
[c. Based on the perceived health risk to others posed by the
inmate's threatened or actual actions, the Warden may, with the
telephonic approval of the Regional Director, temporarily (not to
exceed 20 work days) place an inmate in a special housing status
(e.g., administrative detention, or a secure health service unit
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room) pending the inmate's appearance before the Hearing
Administrator. Reasons for this placement, and the approval of
the Regional Director, shall be documented in the inmate central
file. The inmate should be seen daily by case management and
medical staff while in this temporary status, and a psychological
or psychiatric assessment report should be prepared during this
temporary placement period.]
When an Incident Report prompts the referral, staff shall place
the inmate in Administrative Detention, in accord with procedures
in the Program Statement on Inmate Discipline and Special Housing
Units, while the controlled status placement referral and
decision are made. Under that Program Statement, an inmate
placed in Disciplinary Segregation for committing a Prohibited
Act may be placed in post-disciplinary detention for a period
ordinarily not to exceed 90 days.
7. [HEARING PROCEDURE §541.63
a. The Regional Director in the region where the inmate is
located shall review the institution's recommendation for
referral of an inmate for controlled housing status. If the
Regional Director concurs with the recommendation, the Regional
Director shall designate person in the Regional Office or a
person at department head level or above in the institution to
conduct a hearing on the appropriateness of an inmate's placement
in controlled housing status. This Hearing Administrator shall
have correctional experience, no former personal involvement in
the instant situation, and a knowledge of the type of behavior
that poses a health risk to others, and of the options available
for dealing with an inmate who poses such a health risk to
others.
b. The Hearing Administrator shall provide a hearing to an
inmate recommended for controlled housing status. The hearing
ordinarily shall take place at the institution housing the
inmate.
c. The hearing shall proceed as follows:
(1) Staff shall provide an inmate with an advance written
notice of the hearing and a copy of this rule at least 24 hours
prior to the hearing. The notice will advise the inmate of the
specific act(s) or other evidence which forms the basis for a
recommendation that the inmate be placed in a controlled housing
status, unless such evidence would likely endanger staff or
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others. If an inmate is illiterate, staff shall explain the
notice and this rule to the inmate and document that this
explanation has occurred.]
The Hearing Administrator prepares the Notice of Controlled
Housing Status Hearing (Attachment A) and sends it and a copy of
this Program Statement or current rule to the institution for
staff delivery to the inmate. The date and time the inmate
receives this material are to be recorded on the staff copy of
the notice.
[(2) The Hearing Administrator shall upon request of the
inmate provide an inmate the service of a full-time staff member
to represent the inmate. The Hearing Administrator shall
document in the record of the hearing an inmate's request for, or
refusal of staff representation. The inmate may select a staff
representative from the local institution. If the selected staff
member declines for good reason or is unavailable, the inmate has
the option of selecting another representative or, in the case of
an absent staff member, of waiting a reasonable period
(determined by the Hearing Administrator) for the staff member's
return, or of proceeding without a staff representative. When an
inmate is illiterate, the Warden shall provide a staff
representative. The staff representative shall be available to
assist the inmate and, if the inmate desires, shall contact
witnesses and present favorable evidence at the hearing. The
Hearing Administrator shall afford the staff representative
adequate time to speak with the inmate and to interview available
witnesses.
(3) The inmate has the right to be present throughout the
hearing, except where institutional security or good order is
jeopardized. The Hearing Administrator may conduct a hearing in
the absence of the inmate when the inmate refuses to appear. The
Hearing Administrator shall document an inmate's refusal to
appear, or other reason for nonappearance, in the record of the
hearing.]
An inmate who refuses to appear at the hearing may still
elect to have a staff representative and witness(es) appear on
his or her behalf.
[(4) The inmate is entitled to present documentary evidence
and to have witnesses appear, provided that calling witnesses
would not jeopardize or threaten institutional security or
individual safety, and further provided that the witnesses are
available at the institution where the hearing is being
conducted.
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(i) The evidence to be presented must be material and
relevant to the issue as to whether the inmate can and would pose
a health risk to others, if allowed to remain in general prison
population. This evidence may come from the statements of the
individual, repeated misconduct (including disciplinary actions),
or other behavior suggesting that the inmate may engage in
predatory or promiscuous sexual behavior, assaultive behavior
where body fluids may be transmitted to others, or the sharing of
needles.
(ii) Repetitive witnesses need not be called. Staff who
recommend placement in a controlled housing status are not
required to appear, provided their recommendation is fully
explained in the record.]
A staff witness who the Hearing Administrator determines
can present material and relevant evidence or testimony may not
decline to appear.
[(iii) When a witness is not available within the
institution, or not permitted to appear, the inmate may submit a
written statement by that witness. The Hearing Administrator
shall, upon the inmate's request, postpone any decision following
the hearing for a reasonable time to permit the obtaining and
forwarding of written statements.
(iv) The Hearing Administrator shall document in the
record of the hearing the reasons for declining to hear a witness
or to receive documentary evidence.]
8. [DECISION OF THE HEARING ADMINISTRATOR §541.64
a. At the conclusion of the hearing and following review of
all material related to the recommendation for placement of an
inmate in a controlled housing status, the Hearing Administrator
shall prepare a written decision as to whether this placement is
warranted. The Hearing Administrator shall:
(1) Prepare a summary of the hearing and of all information
presented upon which the decision is based; and
(2) Indicate the specific reasons for the decision, to
include a description of the act, or series of acts, or other
reliable evidence on which the decision is based, along with
evidence of the inmate's HIV positive status.]
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This description must be sufficiently detailed to give the
reader the information upon which the decision is based.
[b. The Hearing Administrator shall advise the inmate in
writing of the decision. The inmate shall receive the
information described in paragraph a. of this section unless it
is determined that the release of this information could pose a
threat to individual safety, or institutional security, in which
case that limited information may be withheld. The Hearing
Administrator shall advise the inmate that the decision will be
submitted for review of the Regional Director in the region where
the inmate is located. The Hearing Administrator shall advise
the inmate that, if the inmate so desires, the inmate may submit
an appeal of the Hearing Administrator's decision to the Regional
Director. This appeal, with supporting documentation and
reasons, must be filed within five working days of the inmate's
receipt of the Hearing Administrator's decision.]
The employee who delivers the Notice of Controlled Housing
Status Hearing (Attachment B) decision to the inmate shall record
on both the inmate's copy and on the central file copy:
# the date and time the inmate received the decision, and
# the employee's name and signature.
[c. The Hearing Administrator may order the continuation of
the inmate in special housing pending review by the Regional
Director. The Hearing Administrator should state the reasons for
this order in the record of the Hearing.
d. The Hearing Administrator shall send the decision, whether
for or against placement in a controlled housing status, and
supporting documentation to the Regional Director. Ordinarily,
this is done within 20 working days after conclusion of the
hearing. Any reason for extension is to be documented.]
. [REGIONAL DIRECTOR REVIEW AND APPEAL §541.65
a. The Regional Director shall review the decision and
supporting documentation of the Hearing Administrator and, if
submitted, the information contained in an inmate's appeal. The
Regional Director shall accept or reject the Hearing
Administrator's decision within 30 working days of its receipt,
unless for good cause there is reason for delay, which shall be
documented in the record. The authority of the Regional Director
may not be delegated below the level of acting Regional Director.
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b. The Regional Director shall provide a copy of his decision
to the Warden at the institution housing the inmate, to the
inmate, and to the Hearing Administrator.]
The Regional Director shall send the inmate's copy in care of
the Warden, who shall ensure it is delivered to the inmate.
The employee who delivers the Regional Director's decision to
the inmate shall record on both the inmate's copy and on the
central file copy:
# the date and time the inmate received the decision, and
# the employee's name and signature.
If an inmate is approved for controlled housing status, the
Warden may place him or her in a controlled housing status, which
may consist of placement in Administrative Detention, under close
supervision, in a secure hospital room, or in an equivalent
setting.
If the inmate is to be transferred to another institution, he
or she may be placed in Administrative Detention in holdover
status.
Any inmate placed in controlled housing under this Program
Statement shall be assigned to a single cell, or if one is not
available, in a cell with another inmate in controlled housing
under this procedure.
[c. An inmate may appeal a decision of the Regional Director,
through the Administrative Remedy Program, directly to the
National Inmate Appeals Administrator, Office of General Counsel,
within 30 calendar days of the Regional Director's decision.
(See 28 CFR 542.15).]
See the Program Statement on the Administrative Remedy Program.
In the notification sent to the inmate, the Regional Director
shall advise that inmate of the right to appeal.
10. [PROGRAMS AND SERVICES §541.66. To the extent consistent
with available resources and the security needs of the
institution, an inmate in controlled housing status is to be
considered for activities and privileges afforded to the general
population. This includes, but is not limited to, providing an
inmate with the opportunity for participation in an education
program, library services, counseling, and religious guidance, as
well as access to case management, medical and mental health
assistance, and legal services, including access to the
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institution's law libraries. An inmate in controlled housing
status should be afforded at least five hours weekly recreation
and exercise out of the cell. The recreation shall be by himself
or under close supervision. Unless there are compelling reasons
to the contrary, institutions shall provide commissary privileges
and reasonable amounts of personal property. The Warden may
restrict for reasons of security, fire safety, or housekeeping
the amount of personal property that an inmate may retain while
in controlled housing status. An inmate shall be permitted to
have a radio, provided it is equipped with ear plugs. Visits
shall be carefully monitored.]
Because of the health threat posed by the individual's behavior
or threatened behavior, the inmate's involvement in these areas
and the opportunity to socialize may be more limited than that
provided to the general population. For example, an inmate in a
controlled housing status may be enrolled in correspondence
courses, rather than attend the academic school. This also means
that the inmate's recreation time must be under close supervision
to help protect the health and safety of others.
Any limitation on food services and personal hygiene care must,
at a minimum, be no greater than those specified for inmates in
special housing status. Disposable utensils or other special
articles may be appropriate for those who are assaultive. Legal
matters, visitors, correspondence, and telephone privileges are
to be handled in accord with Bureau policy on those areas.
11. RECORDS. Detailed records are to be maintained. All
admissions to controlled housing status shall be recorded,
including date, time, the specific reason for admission, and the
authorizing official on form BP 292. All releases, of any type,
from this status will be similarly recorded.
Staff shall maintain records regarding:
# meals,
# showers,
# recreation,
# medication,
# medical and mental health visits and treatment, and
# unusual activity or behavior of the inmate (positive and
negative).
These shall ultimately become part of the inmate central file.
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Officials visiting the inmate in controlled housing status shall
sign a log giving:
# time,
# date, and
# reason for the visit.
12. [REVIEW OF CONTROLLED HOUSING STATUS §541.67
a. Staff designated by the Warden shall evaluate regularly an
inmate's adjustment while in controlled housing status. A
medical staff member shall see the inmate daily, and regularly
record medical and behavioral impressions. Once every 90 days,
staff, comprised of a correctional and case management
supervisor, and a member of the medical staff, shall meet with
the inmate. The inmate is required to attend this meeting in
order to be considered for release to the general population.
Any refusal by the inmate to attend this meeting will be
documented. Staff, at this meeting, shall make an assessment of
the inmate's adjustment while in controlled housing and the
likely health threat the inmate poses to others by his actions.]
At the in-person review, staff are to have available the
collected information on daily activity and a current psychiatric
or psychological assessment report.
Appropriate staff shall prepare written psychiatric or
psychological assessments at least every 90 days as long as the
inmate is in controlled housing status. Those reports shall
address:
# the inmate's adjustment to surroundings;
# the threat the inmate poses to self, staff, and other
inmates if released; and
# any recommendations as to release from controlled
housing status.
[b. The Warden shall serve as the review authority at the
institutional level, and shall make a recommendation to the
Regional Director when he believes the inmate should be
considered for release from controlled housing.
c. An inmate may appeal a Warden's decision not to recommend
release from controlled housing to the Regional Director within
five working days of receipt of that decision.
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d. Upon recommendation of the Warden, or upon appeal from the
inmate, the Regional Director may decide whether or not to
release the inmate to general population from controlled housing
status.
e. An inmate may appeal a decision of the Regional Director,
through the Administrative Remedy Program, directly to the
National Inmate Appeals Administrator, Office of General Counsel,
within 30 calendar days from the date of the Regional Director's
decision.]
13. [RELEASE FROM CONTROLLED HOUSING STATUS §541.68
a. Only the Regional Director may release an inmate from
controlled housing status. The following factors are considered
in the evaluation of an inmate's readiness for return to the
general population:
(1) Relationship with other inmates and staff members,
which demonstrate that the inmate is able to function in a less
restrictive environment without posing a health threat to others
or to the orderly operation of the institution;
(2) Involvement in work and recreational activities and
assignments or other programs; and
(3) Adherence to institution guidelines and Bureau of
Prisons rules and policy.
b. An inmate released from a controlled housing status may be
returned to the general population of that institution, or to
another federal or non-federal institution.]
/s/
Kathleen M. Hawk
Director
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Attachment A , Page 1
NOTICE OF CONTROLLED HOUSING STATUS HEARING - Page 1 of 3
The original of this Notice was delivered to the inmate
(date/time) by (staff member's signature/printed name)
DATE:
To: Inmate's Name - Register Number:
Institution -
From: Hearing Administrator -
You have been referred for a hearing before a Controlled Housing Status Hearing Administrator. This hearing is to
determine if you should be confined in a controlled housing status. Information concerning this referral, the hearing,
and your rights at this hearing are set forth in this Notice.
1. Scheduled Date and Location for Hearing:
2. Brief summary of the act(s) resulting in the recommendation for this placement:
3. You are entitled to have a full-time staff member represent you at this hearing. Please indicate whether you
desire to have a staff representative and, if so, the person's name.
+)),
.))- I wish to have the following staff representative:
+)),
.))- I do not want a staff representative.
4. You have the right to call available witnesses at the hearing and to present documentary evidence. It is not
the purpose of this hearing, however, to "re-hear" any prior disciplinary proceedings. The testimony of
witnesses and the documentary evidence presented must be relevant to the issue of whether you can and would
function in a general prison population without you actions posing a threat to others. Witnesses providing
repetitive testimony, witnesses not available at the institution, and witnesses whose appearance at the hearing
would jeopardize institutional safety, will not be called. You may, however, submit such testimony in the form
of written and signed statement(s).
Please indicate on the next page if you wish to call available witnesses. If you do wish to call witnesses,
give their names, along with a brief description of their expected testimony.
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Attachment A , Page 2
NOTICE OF CONTROLLED HOUSING STATUS HEARING - Page 2 of 3
INMATE'S NAME: REGISTER #: DATE:
5. a. +))))),
.)))))- Initial this box if you do not want to call any witnesses.
b. If you do want to call available witnesses, give their names and a brief description of their expected
testimony.
Name: Can testify to:
Name: Can testify to:
Name: Can testify to:
Name: Can testify to:
c. List the names of those witnesses from whom you intend to obtain written statements.
Name: Can make a statement to:
Name: Can make a statement to:
Name: Can make a statement to:
Name: Can make a statement to:
If additional space is needed, use the reverse side of this form. Failure to complete the form will be
considered as your waiver to witnesses and staff representation.
Signature of Inmate: Date:
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Attachment A , Page 3
NOTICE OF CONTROLLED HOUSING STATUS HEARING - Page 3 of 3
INMATE'S NAME: REGISTER #: DATE:
6. Inmate Rights at Hearing - As an inmate referred for placement in a controlled housing status, you have the
following rights:
a. The right to have a written summary of the specific act(s) or other evidence which forms the basis for this
recommendation, unless such information would likely endanger staff or others. You have the right to receive
this summary at least 24 hours prior to the hearing.
b. The right to have a full-time member of the staff who is reasonably available to represent you before the
Hearing Administrator.
c. The right to be present throughout the hearing except where institutional security or good order would be
jeopardized. If you elect not to appear before the Hearing Administrator, you may still elect to have a staff
representative and witnesses appear in your behalf.
d. The right to call available witnesses and to present documentary evidence in your behalf which is relevant to
the issue, provided institutional security or individual safety would not be jeopardized.
e. The right to be advised, in writing, of the Hearing Administrator's decision and a summary of the facts and
reasons supporting this decision, to the extent institutional security or individual safety would not be
jeopardized.
f. The right to appeal the recommendation of the Hearing Administrator by a written appeal to:
Regional Director
Bureau of Prisons
))))))))))))))))))))))
))))))))))))))))))))))
This appeal, with supporting documentation and reasons, must be filed within five working days of the
inmate's receipt of the Hearing Administrator's decision.
7. I have been advised of the above rights afforded me at a Controlled Housing Status hearing. I have also
received a copy of the current Program Statement or rule on controlled housing status.
Signature of Inmate: Date:
8. When an inmate has been advised of the above rights and provided a copy of the current Program Statement or rule
on controlled housing status, but refuses to sign the acknowledgment, the following is to be completed:
I have personally advised of the above rights, and provided the inmate a copy of the
current Program Statement or rule on controlled housing status; however, the inmate refused to sign the
acknowledgment.
Signature of Employee: Date:
Printed Name of Employee:
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PS 5214.04
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Attachment A , Page 1
CONTROLLED HOUSING STATUS HEARING ADMINISTRATOR'S REPORT - Page 1 of 2
INMATE'S NAME: REGISTER #: DATE:
1. Notice of Hearing:
a. The "Notice of Controlled Housing Status Hearing" was given to the above named inmate on (date) at
(time) . A copy of this Notice is attached.
b. The hearing was held by (Hearing Administrator) , from (location) , on (date)
at . The inmate was present; not present for the following reason(s): .
A summary of the inmate's statement is attached.
2. Staff Representation: The inmate was advised, in the "Notice of Controlled Housing Status Hearing", of the
right to select a staff representative.
a. The inmate elected to proceed without a staff representative.
b. The inmate selected a staff representative, who appeared at the hearing. The staff representative selected was
. A summary of the representative's statement given at the hearing is attached.
3. Appearance of Witnesses: The inmate was advised, in the "Notice of Controlled Housing Status Hearing", of the
right to have witnesses appear at the hearing.
a. The inmate elected to proceed without the benefit of witnesses.
b. The inmate selected the following witnesses to appear.
Reason requested witnesses were not called:
A summary of witness(es) statements given at the hearing is attached.
4. Presentation of Documented Statements: The inmate was advised, in the "Notice of Controlled Housing Status
Hearing", of the right to submit documentary evidence.
a. The inmate declined to present any documentary evidence to the Hearing Administrator.
b. The inmate presented the following documentary evidence.
A copy of the documentation evidence is attached.
5. Inmate's Physical and Mental Health:
Signature of Medical Staff Member
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PS 5214.04
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Attachment B, Page 2
CONTROLLED HOUSING STATUS HEARING ADMINISTRATOR'S REPORT - Page 2 of 2
INMATE'S NAME: REGISTER #: DATE:
6. Finding:
7. Decision:
8. Inmate to be continued in special housing pending Regional Director review? No; Yes (If yes, state reasons)
9. Appeal Rights: You have the right to appeal this decision by forwarding a written appeal to:
Regional Director
Bureau of Prisons
Your appeal must be filed within five (5) work days following receipt of the Hearing Administrator's decision.
The final decision is made by the Regional Director.
Signature of Hearing Administrator: Date:
Printed Name of Hearing Administrator:
10. I hereby acknowledged that I have received a copy of the Hearing Administrator's decision on (date) at
(time) .
Signature of Inmate:
Signature/Printed Name of Employee:
11. When an inmate refuses to sign for a copy of the decision, the following is completed.
I have personally delivered a copy of the Hearing Administrator's decision to the above-named inmate; however,
the inmate refused to sign the acknowledgment.
Date/Time of Delivery:
Signature/Printed Name of Employee:
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